House Bill 1400

(As Passed the House)

AN ACT TO CREATE NEW SECTIONS 41-41-131 THROUGH 41-41-145,
MISSISSIPPI CODE OF 1972, TO PROHIBIT THE PERFORMING OR INDUCING OF AN ABORTION
AT OR AFTER TWENTY WEEKS AFTER CONCEPTION; TO PROHIBIT THE PERFORMING OR
INDUCING OF AN ABORTION UNTIL A PHYSICIAN MAKES A DETERMINATION OF THE PROBABLE
POST-CONCEPTION AGE OF THE UNBORN CHILD; TO PROVIDE FOR CERTAIN EXCEPTIONS; TO
PROVIDE FOR THE PROTECTION OF PRIVACY IN COURT PROCEEDINGS OF THE IDENTITY OF
THE WOMAN ON WHOM AN ABORTION HAS BEEN PERFORMED OR INDUCED; TO AMEND SECTION
73-25-29, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A PHYSICIAN WHO PERFORMS OR
INDUCES AN ABORTION IN VIOLATION OF THIS ACT IS SUBJECT TO DISCIPLINARY ACTION;
TO BRING FORWARD SECTION 41-75-1, MISSISSIPPI CODE OF 1972, FOR THE PURPOSES OF
POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION
1. (1) The findings indicate that:

(a)
Substantial medical evidence recognizes that an unborn child is capable of
experiencing pain by not later than twenty (20) weeks after conception;

(b)
The state has a compelling state interest in protecting the lives of unborn
children from the stage at which substantial medical evidence indicates that
these children are capable of feeling pain;

(c)
The compelling state interest in protecting the lives of unborn children from
the stage at which substantial medical evidence indicates that an unborn child
is capable of feeling pain is intended to be separate from and independent of
the compelling state interest in protecting the lives of unborn children from
the stage of viability, and neither state interest is intended to replace the
other; and

(d)
Restricting elective abortions at or later than twenty (20) weeks post-conception,
as provided by Sections 41-41-131 through 41-41-145, does not impose an undue
burden or a substantial obstacle on a woman's ability to have an abortion
because:

(i)
The woman has adequate time to decide whether to have an abortion in the first
twenty (20) weeks after conception; and

(ii)
Sections 41-41-131 through 41-41-145 do not apply to abortions that are
necessary to avert the death or substantial and irreversible physical
impairment of a major bodily function of the pregnant woman or abortions that
are performed on unborn children with severe fetal abnormalities.

(2)
The Legislature intends that every application of Sections 41-41-131 through 41-41-145
to every individual woman shall be severable from each other. In the
unexpected event that the application of Sections 41-41-131 through 41-41-145
is found to impose an impermissible undue burden on any pregnant woman or group
of pregnant women, the application of Sections 41-41-131 through 41-41-145 to
those women shall be severed from the remaining applications of Sections 41-41-131
through 41-41-145 that do not impose an undue burden, and those remaining
applications shall remain in force and unaffected, consistent with Section 13
of this act.

SECTION
2. The following shall be codified
as Section 41-41-131, Mississippi Code of 1972:

41-41-131.
Sections 41-41-131 through 41-41-145 may be cited as the Preborn Pain Act.

SECTION
3. The following shall be codified
as Section 41-41-133, Mississippi Code of 1972:

41-41-133.
As used in Sections 41-41-131 through 41-41-145:

(a)
"Abortion" means the use or prescription of any instrument, medicine,
drug or any other substance or device to terminate the pregnancy of a woman
known to be pregnant with an intention other than to increase the probability
of a live birth, to preserve the life or health of the child after live birth
or to remove a dead fetus.

(b)
"Post-conception age" means the age of the unborn child as calculated
from the time the fused human spermatozoon and human ovum implant in the human
female uterus.

(c)
"Severe fetal abnormality" means a life threatening physical
condition that, in reasonable medical judgment, regardless of the provision of
life saving medical treatment, is incompatible with life outside the womb.

SECTION
4. The following shall be codified
as Section 41-41-135, Mississippi Code of 1972:

41-41-135.
Except as otherwise provided by Section 41-41-141, a physician may not perform
or induce or attempt to perform or induce an abortion without, before the
procedure:

(a)
Making a determination of the probable post-conception age of the unborn child;
or

(b)
Possessing and relying on a determination of the probable post-conception age
of the unborn child made by another physician.

SECTION
5. The following shall be codified
as Section 41-41-137, Mississippi Code of 1972:

41-41-137.
Except as otherwise provided by Section 41-41-141, a person may not perform or
induce or attempt to perform or induce an abortion on a woman if it has been
determined, by the physician performing, inducing, or attempting to perform or
induce the abortion or by another physician on whose determination that
physician relies, that the probable post-conception age of the unborn child is
twenty (20) or more weeks.

SECTION
6. The following shall be codified
as Section 41-41-139, Mississippi Code of 1972:

41-41-139.
(1) This section applies only to an abortion authorized under Section 41-41-141(1)(a)
or (b) in which:

(a)
The probable post-conception age of the unborn child is twenty (20) or more
weeks; or

(b)
The probable post-conception age of the unborn child has not been determined
but could reasonably be twenty (20) or more weeks.

(2)
Except as otherwise provided by Section 41-41-141(1)(c), a physician performing
or inducing an abortion under subsection (1) of this section shall terminate
the pregnancy in the manner that, in the physician's reasonable
medical judgment, provides the best opportunity for the unborn child to
survive.

SECTION
7. The following shall be codified
as Section 41-41-141, Mississippi Code of 1972:

41-41-141.
(1) The prohibitions and requirements under Sections 41-41-135, 41-41-137 and
41-41-139(2) do not apply to an abortion performed or induced if there exists a
condition that, in the physician's reasonable medical judgment, so complicates the
medical condition of the woman that, to avert the woman's death or a
serious risk of substantial and irreversible physical impairment of a major
bodily function, other than a psychological condition, it necessitates, as applicable:

(a)
The immediate abortion of her pregnancy without the delay necessary to
determine the probable post-conception age of the unborn child;

(b)
The abortion of her pregnancy even though the post-conception age of the unborn
child is twenty (20) or more weeks; or

(c)
The use of a method of abortion other than a method described by Section 41-41-139(2).

(2)
A physician may not take an action authorized under subsection (1) of this
section if the risk of death or a substantial and irreversible physical
impairment of a major bodily function arises from a claim or diagnosis that the
woman will engage in conduct that may result in her death or in substantial and
irreversible physical impairment of a major bodily function.

(3)
The prohibitions and requirements under Sections 41-41-135, 41-41-137 and 41-41-139(2)
do not apply to an abortion performed or induced on an unborn child who has a
severe fetal abnormality.

SECTION
8. The following shall be codified
as Section 41-41-143, Mississippi Code of 1972:

41-41-143.
(1) Except as otherwise provided by this section, in a civil or criminal
proceeding or action involving an act prohibited under Sections 41-41-131
through 41-41-145, the identity of the woman on whom an abortion has been
performed or induced or attempted to be performed or induced is not subject to
public disclosure if the woman does not give consent to disclosure.

(2)
Unless the court makes a ruling under subsection (3) of this section to allow
disclosure of the woman's identity, the court shall issue orders to the
parties, witnesses, and counsel and shall direct the sealing of the record and
exclusion of individuals from courtrooms or hearing rooms to the extent
necessary to protect the woman's identity from public disclosure.

(3)
A court may order the disclosure of information that is confidential under this
section if:

(a)
A motion is filed with the court requesting release of the information and a
hearing on that request;

(b)
Notice of the hearing is served on each interested party; and

(c)
The court determines after the hearing and an in camera review that disclosure
is essential to the administration of justice and there is no reasonable
alternative to disclosure.

SECTION
9. The following shall be codified
as Section 41-41-145, Mississippi Code of 1972:

41-41-145.
(1) Sections 41-41-131 through 41-41-145 shall be construed, as a matter of
state law, to be enforceable up to but no further than the maximum possible
extent consistent with federal constitutional requirements, even if that
construction is not readily apparent, as such constructions are authorized only
to the extent necessary to save Sections 41-41-131 through 41-41-145 from
judicial invalidation. Judicial reformation of statutory language is explicitly
authorized only to the extent necessary to save the statutory provision from
invalidity.

(2)
If any court determines that a provision of Sections 41-41-131 through 41-41-145
is unconstitutionally vague, the court shall interpret the provision, as a
matter of state law, to avoid the vagueness problem and shall enforce the
provision to the maximum possible extent. If a federal court finds any
provision of Sections 41-41-131 through 41-41-145 or its application to any
person, group of persons, or circumstances to be unconstitutionally vague and
declines to impose the saving construction described by this subsection, the
Mississippi Supreme Court shall provide an authoritative construction of the
objectionable statutory provisions that avoids the constitutional problems
while enforcing the statute's restrictions to the maximum possible extent, and
shall agree to answer any question certified from a federal appellate court
regarding the statute.

(3)
State executive or administrative official may not decline to enforce Sections
41-41-131 through 41-41-145, or adopt a construction of Sections 41-41-131
through 41-41-145 in a way that narrows their applicability, based on the
official's
own beliefs about what the state or federal constitution requires, unless the
official is enjoined by a state or federal court from enforcing Sections 41-41-131
through 41-41-145.

(4)
Sections 41-41-131 through 41-41-145 may not be construed to authorize the
prosecution of or a cause of action to be brought against a woman on whom an
abortion is performed or induced or attempted to be performed or induced in
violation of Sections 41-41-131 through 41-41-145.

73-25-29. The grounds for
the nonissuance, suspension, revocation or restriction of a license or the
denial of reinstatement or renewal of a license are:

(1) Habitual personal
use of narcotic drugs, or any other drug having addiction-forming or addiction-sustaining
liability.

(2) Habitual use of
intoxicating liquors, or any beverage, to an extent which affects professional
competency.

(3) Administering,
dispensing or prescribing any narcotic drug, or any other drug having addiction-forming
or addiction-sustaining liability otherwise than in the course of legitimate
professional practice.

(4) Conviction of
violation of any federal or state law regulating the possession, distribution
or use of any narcotic drug or any drug considered a controlled substance under
state or federal law, a certified copy of the conviction order or judgment
rendered by the trial court being prima facie evidence thereof, notwithstanding
the pendency of any appeal.

(5) Procuring, or
attempting to procure, or aiding in, an abortion that is not medically indicated.

(6) Conviction of a
felony or misdemeanor involving moral turpitude, a certified copy of the
conviction order or judgment rendered by the trial court being prima facie
evidence thereof, notwithstanding the pendency of any appeal.

(7) Obtaining or
attempting to obtain a license by fraud or deception.

(8) Unprofessional
conduct, which includes, but is not limited to:

(a) Practicing
medicine under a false or assumed name or impersonating another practitioner,
living or dead.

(b) Knowingly
performing any act which in any way assists an unlicensed person to practice
medicine.

(c) Making or
willfully causing to be made any flamboyant claims concerning the licensee's
professional excellence.

(d) Being guilty
of any dishonorable or unethical conduct likely to deceive, defraud or harm the
public.

(e) Obtaining a
fee as personal compensation or gain from a person on fraudulent representation
of a disease or injury condition generally considered incurable by competent
medical authority in the light of current scientific knowledge and practice can
be cured or offering, undertaking, attempting or agreeing to cure or treat the
same by a secret method, which he refuses to divulge to the board upon request.

(f) Use of any
false, fraudulent or forged statement or document, or the use of any
fraudulent, deceitful, dishonest or immoral practice in connection with any of
the licensing requirements, including the signing in his professional capacity
any certificate that is known to be false at the time he makes or signs such
certificate.

(g) Failing to
identify a physician's school of practice in all professional uses of his name
by use of his earned degree or a description of his school of practice.

(9) The refusal of a
licensing authority of another state or jurisdiction to issue or renew a
license, permit or certificate to practice medicine in that jurisdiction or the
revocation, suspension or other restriction imposed on a license, permit or
certificate issued by such licensing authority which prevents or restricts
practice in that jurisdiction, a certified copy of the disciplinary order or
action taken by the other state or jurisdiction being prima facie evidence
thereof, notwithstanding the pendency of any appeal.

(10) Surrender of a
license or authorization to practice medicine in another state or jurisdiction
or surrender of membership on any medical staff or in any medical or
professional association or society while under disciplinary investigation by
any of those authorities or bodies for acts or conduct similar to acts or
conduct which would constitute grounds for action as defined in this section.

(11) Final sanctions
imposed by the United States Department of Health and Human Services, Office of
Inspector General or any successor federal agency or office, based upon a
finding of incompetency, gross misconduct or failure to meet professionally
recognized standards of health care; a certified copy of the notice of final
sanction being prima facie evidence thereof. As used in this paragraph, the
term "final sanction" means the written notice to a physician from
the United States Department of Health and Human Services, Officer of Inspector
General or any successor federal agency or office, which implements the
exclusion.

(12) Failure to
furnish the board, its investigators or representatives information legally
requested by the board.

(13) Violation of any
provision(s) of the Medical Practice Act or the rules and regulations of the
board or of any order, stipulation or agreement with the board.

(14) Violation(s) of
the provisions of Sections 41-121-1 through 41-121-9 relating to deceptive
advertisement by health care practitioners. This paragraph shall stand
repealed on July 1, 2016.

(15) Performing or
inducing an abortion on a woman in violation of any provision of Sections 41-41-131
through 41-41-145.

In addition to the grounds
specified above, the board shall be authorized to suspend the license of any
licensee for being out of compliance with an order for support, as defined in
Section 93-11-153. The procedure for suspension of a license for being out of
compliance with an order for support, and the procedure for the reissuance or
reinstatement of a license suspended for that purpose, and the payment of any
fees for the reissuance or reinstatement of a license suspended for that
purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may
be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163
and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163,
as the case may be, shall control.

(a) "Ambulatory surgical
facility" means a publicly or privately owned institution that is
primarily organized, constructed, renovated or otherwise established for the
purpose of providing elective surgical treatment of "outpatients"
whose recovery, under normal and routine circumstances, will not require
"inpatient" care. The facility defined in this paragraph does not
include the offices of private physicians or dentists, whether practicing
individually or in groups, but does include organizations or facilities
primarily engaged in that outpatient surgery, whether using the name
"ambulatory surgical facility" or a similar or different name. That
organization or facility, if in any manner considered to be operated or owned
by a hospital or a hospital holding, leasing or management company, either for
profit or not for profit, is required to comply with all licensing agency
ambulatory surgical licensure standards governing a "hospital
affiliated" facility as adopted under Section 41-9-1 et seq., provided
that the organization or facility does not intend to seek federal certification
as an ambulatory surgical facility as provided for at 42 CFR, Parts 405 and
416. If the organization or facility is to be operated or owned by a
hospital or a hospital holding, leasing or management company and intends to
seek federal certification as an ambulatory facility, then the facility is
considered to be "freestanding" and must comply with all licensing
agency ambulatory surgical licensure standards governing a "freestanding"
facility.

If the organization or
facility is to be owned or operated by an entity or person other than a
hospital or hospital holding, leasing or management company, then the
organization or facility must comply with all licensing agency ambulatory
surgical facility standards governing a "freestanding" facility.

(b) "Hospital
affiliated" ambulatory surgical facility means a separate and distinct
organized unit of a hospital or a building owned, leased, rented or utilized by
a hospital and located in the same county in which the hospital is located, for
the primary purpose of performing ambulatory surgery procedures. The facility
is not required to be separately licensed under this chapter and may operate
under the hospital's license in compliance with all applicable requirements of
Section 41-9-1 et seq.

(c)
"Freestanding" ambulatory surgical facility means a separate and
distinct facility or a separate and distinct organized unit of a hospital
owned, leased, rented or utilized by a hospital or other persons for the
primary purpose of performing ambulatory surgery procedures. The facility must
be separately licensed as defined in this section and must comply with all
licensing standards promulgated by the licensing agency under this chapter
regarding a "freestanding" ambulatory surgical facility. Further,
the facility must be a separate, identifiable entity and must be physically,
administratively and financially independent and distinct from other operations
of any other health facility, and shall maintain a separate organized medical
and administrative staff. Furthermore, once licensed as a
"freestanding" ambulatory surgical facility, the facility shall not
become a component of any other health facility without securing a certificate
of need to do that.

(d) "Ambulatory
surgery" means surgical procedures that are more complex than office
procedures performed under local anesthesia, but less complex than major
procedures requiring prolonged postoperative monitoring and hospital care to
ensure safe recovery and desirable results. General anesthesia is used in most
cases. The patient must arrive at the facility and expect to be discharged on
the same day. Ambulatory surgery shall only be performed by physicians or
dentists licensed to practice in the State of Mississippi.

(e)
"Abortion" means the use or prescription of any instrument, medicine,
drug or any other substances or device to terminate the pregnancy of a woman
known to be pregnant with an intention other than to increase the probability
of a live birth, to preserve the life or health of the child after live birth
or to remove a dead fetus. Abortion procedures after the first trimester shall
only be performed at a Level I abortion facility or an ambulatory surgical
facility or hospital licensed to perform that service.

(f) "Abortion
facility" means a facility operating substantially for the purpose of
performing abortions and is a separate identifiable legal entity from any other
health care facility. Abortions shall only be performed by physicians licensed
to practice in the State of Mississippi. All physicians associated with the
abortion facility must have admitting privileges at a local hospital and staff
privileges to replace local hospital on-staff physicians. All physicians
associated with an abortion facility must be board certified or eligible in
obstetrics and gynecology, and a staff member trained in CPR shall always be
present at the abortion facility when it is open. The term "abortion
facility" includes physicians' offices that are used substantially for the
purpose of performing abortions. An abortion facility operates substantially
for the purpose of performing abortions if any of the following conditions are
met:

(i) The abortion
facility is a provider for performing ten (10) or more abortion procedures per
calendar month during any month of a calendar year, or one hundred (100) or
more in a calendar year.

(ii) The abortion
facility, if operating less than twenty (20) days per calendar month, is a
provider for performing ten (10) or more abortion procedures, or performing a
number of abortion procedures that would be equivalent to ten (10) procedures
per month, if the facility were operating twenty (20) or more days per calendar
month, in any month of a calendar year.

(iii) The abortion
facility holds itself out to the public as an abortion provider by advertising
by any public means, such as newspaper, telephone directory, magazine or
electronic media, that it performs abortions.

(iv) The facility
applies to the licensing agency for licensure as an abortion facility.

(g) "Licensing
agency" means the State Department of Health.

(h)
"Operating" an abortion facility means that the facility is open for
any period of time during a day and has on site at the facility or on call a
physician licensed to practice in the State of Mississippi available to provide
abortions.

An abortion facility may
apply to be licensed as a Level I facility or a Level II facility by the
licensing agency. Level II abortion facilities shall be required to meet
minimum standards for abortion facilities as established by the licensing
agency. Level I abortion facilities shall be required to meet minimum
standards for abortion facilities and minimum standards for ambulatory surgical
facilities as established by the licensing agency.

Any abortion facility that
begins operation after June 30, 1996, shall not be located within fifteen
hundred (1500) feet from the property on which any church, school or
kindergarten is located. An abortion facility shall not be in violation of
this paragraph if it is in compliance with this paragraph on the date it begins
operation and the property on which a church, school or kindergarten is
located is lateris later withinfifteen
hundred (1500) feet from the facility.

SECTION
12. Sections 41-41-131 through 41-41-145
may not be construed to repeal, by implication or otherwise, any other

provision
of Mississippi law regulating or restricting abortion not specifically
addressed by Sections 41-41-131 through 41-41-145. An abortion that complies
with Sections 41-41-131 through 41-41-145 but violates any other law is
unlawful. An abortion that complies with another state law but violates
Sections 41-41-131 through 41-41-145 is unlawful as provided in Sections 41-41-131
through 41-41-145.

SECTION
13. (1) If some or all of the
provisions of Sections 41-41-131 through 41-41-145 are ever temporarily or
permanently restrained or enjoined by judicial order, all other provisions of
Mississippi law regulating or restricting abortion shall be enforced as though
the restrained or enjoined provisions had not been adopted; however, whenever
the temporary or permanent restraining order or injunction is stayed or
dissolved, or otherwise ceases to have effect, the provisions shall have full
force and effect.

(2)
Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in
the context of determining the severability of a state statute regulating
abortion the United States Supreme Court held that an explicit statement of legislative
intent is controlling, it is the intent of the Legislature that every
provision, section, subsection, paragraph, sentence, clause, phrase, or word in
Sections 41-41-131 through 41-41-145, and every application of the provisions
in Sections 41-41-131 through 41-41-145, are severable from each other. If any
application of any provision in Sections 41-41-131 through 41-41-145 to any
person, group of persons, or circumstances is found by a court to be invalid,
the remaining applications of that provision to all other persons and
circumstances shall be severed and may not be affected.

All
constitutionally valid applications of Sections 41-41-131 through 41-41-145
shall be severed from any applications that a court finds to be invalid,
leaving the valid applications in force, because it is the Legislature's intent and
priority that the valid applications be allowed to stand alone. Even if a
reviewing court finds a provision of Sections 41-41-131 through 41-41-145 to
impose an undue burden in a large or substantial fraction of relevant cases,
the applications that do not present an undue burden shall be severed from the
remaining provisions and shall remain in force, and shall be treated as if the
Legislature had enacted a statute limited to the persons, group of persons, or
circumstances for which the statute's application does not present an undue burden. The
Legislature further declares that it would have passed Sections 41-41-131
through 41-41-145, and each provision, section, subsection, sentence, clause,
phrase, or word, and all constitutional applications of Sections 41-41-131
through 41-41-145, irrespective of the fact that any provision, section,
subsection, paragraph, sentence, clause, phrase, or word, or applications of
Sections 41-41-131 through 41-41-145, were to be declared unconstitutional or
to represent an undue burden.

(3)
If Sections 41-41-131 through 41-41-145 are found by any court to be invalid or
to impose an undue burden as applied to any person, group of persons, or
circumstances, the prohibition shall apply to that person or group of persons
or circumstances on the earliest date on which Sections 41-41-131 through 41-41-145
can be constitutionally applied.

(4)
If any provision of Sections 41-41-131 through 41-41-145 is found by any court
to be unconstitutionally vague, then the applications of that provision that do
not present constitutional vagueness problems shall be severed and remain in
force.

SECTION 14. This act
shall take effect and be in force from and after July 1, 2014.